ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-90 (Supp. 1997) and S. C. Code Ann. §1-23-310 et seq. (1986 and Supp. 1997) for a contested case hearing. The Petitioner, John W. Carrigg, seeks to renew an on-premise beer and wine permit for JC’s. A hearing was held on December 9, 1998 at the Administrative Law Judge Division.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and Protestant, I make the following Findings of Fact by a preponderance of evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue.
2. The Petitioner seeks to renew his on-premise beer and wine permit for JC’s at 1017 Wappoo Road, Charleston County, South Carolina. The Petitioner has held permits issued by the former Alcoholic Beverage Control Commission and its successor, the Department of Revenue, for a period of approximately twelve years for the above location. The Petitioner stated that his hours of operation would be from 12:00 p.m. to no later than 12:00 a.m.
3. The qualifications set forth in S. C. Code Ann. §61-4-520 (Supp. 1997) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years. Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
4. The Petitioner has no criminal record. Furthermore, no evidence was presented that impugned the Petitioner’s personal character. The reputation of the Petitioner’s business is quite another matter. However, to receive a beer and wine permit, only the permittee must be of sufficient moral character. There is no requirement that the business have a reputation for peace and good order. Therefore, the Petitioner is of sufficient moral character to receive a beer and wine permit.
5. The proposed location is not unreasonably close to any church, school or playground.
6. JC’s is in an area that is both residential and commercial. It is located next to a police substation. However, that substation is not manned twenty-four hours a day. Rather, the substation is simply a "stop-off" point for the officers to fill out reports.
7. The South Carolina Department of Revenue (Department) and the Charleston Police Department contend that the Petitioner’s location is not suitable for renewal because the location has become a "hotspot" of criminal activity. Specifically, the Petitioner’s location has become a "hangout" for drug dealers. The Petitioner, on the other hand, testified that he knows of no drug activity on his premises, though he also testified that he asked the Police to assist him in eradicating the criminal problems upon his premises. The Petitioner testified that he prohibits loitering upon his premises.
In light of pervasive drug problems existing at this location, it is difficult to believe the Petitioner was not aware of drug problems at the location. Furthermore, if he had prohibited loitering in his parking area, the facts supporting this protest would not exist.
8. The Petitioner also contends that the protest by the Charleston Police Department is a vendetta as a result of his filing a complaint with the Police Department’s internal affairs unit concerning the behavior of an officer in his establishment. I simply do not find that contention to be meritorious.
9. The premises of JC’s, including the parking area, has been the site of a considerable amount of drug activity and consequently numerous drug arrests. Specifically, more than one hundred arrests have been made at this location from August 1994 to August 1997. Police officers also observed at least ten different illegal sales of drugs actually being made inside the Petitioner’s location.
The parking area where much of the criminal activity has occurred is in an area that is within the Petitioner’s control. Therefore, the myriad of problems in the parking area is a result of the Petitioner’s failure to control the behavior of his patrons. However, no violent crimes have occurred upon the Petitioner’s premises. Furthermore, since May 1998 no arrests or violations have occurred upon the Petitioner’s premises.
10. The Petitioner testified that this is the first time his permit has been protested. However, that testimony was not candid. The renewal of the Petitioner’s permit at this location was previously protested by Mary Drake when the Petitioner was operating the bar under the former name of "OJ’s." After a hearing concerning Ms. Drake’s protest, Mr. Carrigg was granted a permit for this location with numerous restrictions. One of those restrictions was that Mr. Carrigg’s employees would regularly patrol the parking area to prohibit loitering. Furthermore, in accepting the restrictions placed upon his permit, Mr. Carrigg acknowledged that the permit was "a privilege, not a right."
11. The Petitioner has been convicted of violating the provisions of the Alcoholic Beverage Control Act four (4) times at this location. Those violations and penalties are as follows:
a. Permitted or knowingly allowed a minor to purchase a beer on April 11, 1997 - $400 fine;
b. Possession of beer by a minor on January 29, 1994 - $550 fine;
c. Possession of beer by a minor on May 1, 1993 - $300 fine; and
d. Permitted or knowingly allowed a minor to purchase a beer on October 10, 1987 - 15 day suspension.
12. The Petitioner’s compliance with the provisions of the Alcoholic Beverage Control Act is checkered. Furthermore, his business has only become a suitable location because of the great efforts extended by the Charleston Police Department and the limited hours of operation. Without the presence of a security guard at the location and the limited hours of operation the Petitioner is currently operating under, the location would most probably return to being a problem area for law enforcement.
13. I find that with the restrictions set forth below, this business would not create an overall adverse impact on the community. However, if the Petitioner does not completely eliminate the aberrant behavior by his patrons discussed above and/or avoid future violations of the provisions of Title 61 of the S.C. Code, the Petitioner’s location is not suitable for a beer and wine permit. In other words, the determination of suitability of this establishment is based, in part, on the evidence that no criminal infractions have recently incurred on the premises. The recurrence of criminal activity, the violation of the provisions of Title 61 or the failure to strictly comply with the restrictions below would render this location unsuitable not only for the future renewal of his beer and wine permit but for the continued possession of the permit at issue in this case. Therefore, I find that the proposed location is suitable for solely the sale of beer and wine on-premise only as long as the Petitioner complies with the restrictions set forth below, continues to suppress the criminal behavior that has plagued his establishment and avoids future violations of the provisions of Title 61.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 1997) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 1997) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-4-520 (Supp. 1997) sets forth the requirements for the issuance of a beer and wine permit.
4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
6. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
7. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. In considering the suitability of a location, it is relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973).
9. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, privileges granted in the exercise of the state's police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) authorizing the imposition of restrictions to permits, provides:
Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.
In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.
10. The Petitioner meets the statutory requirements for holding an on-premise beer and wine permit at the proposed location with the following restrictions.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premise beer and wine permit application of John W. Carrigg for JC’s be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue agreeing to the restrictions that are set forth below:
1. The Petitioner shall contract with a bonded security company or an off-duty law enforcement officer, as permissible under the law, to employ uniformed security guards to patrol the inside of JC’s and the area immediately surrounding the proposed location during all hours that his business is selling beer and/or wine. The security guard shall prohibit a public disturbance of any kind at the location. The guard shall also monitor the outside of the location to prohibit the consumption of any alcohol or the use or sale of any drugs. Loitering in the parking lot area shall absolutely be prohibited.
2. The Petitioner shall close his business no later than 11:30 p.m.
IT IS FURTHER ORDERED that a violation of any of the above stipulations or restrictions be considered a violation against the permit and may result in a fine, suspension or revocation.
IT IS FURTHER ORDERED that the Department of Revenue issue an on-premise beer and wine permit upon the payment of the required fee and costs by the Petitioner.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
April 7, 1999
Columbia, South Carolina |
